Shivaji Harishchandra Kunte vs The State Of Maharashtra
2017 Latest Caselaw 7948 Bom

                                              1 / 16                      APEAL-246-10.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.246 OF 2010

    Shivaji Harishchandra Kunte
    Age 37 years, residing at Kunte Vasti,
    Bhade, Taluka Khandala,
    District Satara,
    (presently lodge at the 
    Kalbapur Central Prison)                                     ... Appellant/
                                                                 Orig. Accused
                     versus

    The State of Maharashtra
    (At the instance of 
    Khandala Police Station)                                     ... Respondent
                                          .......

    •       Mr.Sanghraj Rupwate, Advocate for the Appellant.
    •       Ms.R.M. Gadhvi, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  12th SEPTEMBER, 2017
                            PRONOUNCED ON :  10th OCTOBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The present Appeal is preferred by the Appellant

challenging the Judgment and Order dated 20/07/2009 passed

by the Additional Sessions Judge, Satara, in Sessions Case

No.122/08, whereby the Appellant was convicted for the offence

Nesarikar

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punishable u/s 302 of the Indian Penal Code and was sentenced

to suffer imprisonment for life and to pay a fine of Rs.1,000/-

and in default of payment of fine to undergo simple

imprisonment for six months. The Appellant was also convicted

for the offence punishable u/s 316 of IPC and was sentenced to

suffer rigorous imprisonment for five years and to pay fine of

Rs.200/- and in default of payment of fine to suffer further

simple imprisonment for one month. Substantive sentences were

directed to run concurrently. The Appellant was given set off u/s

428 of Cr.P.C. for the period. The Appellant was acquitted from

the offence punishable u/s 498-A r/w 34 of the Indian Penal Code.

2. The Appellant had faced the trial alongwith parents

and sister who were accused Nos.2 to 4. These accused Nos.2 to

4 were charged for the offences punishable u/s 468 r/w 34 of

IPC. The charge u/s 302 was framed against the present

Appellant. Though there was no separate charge for the offene

punishable u/s 316 of IPC, the Appellant was convicted under

the said section as mentioned earlier at the conclusion of the trial.

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3. According to the prosecution case, the Appellant had

married one Priyanka on 26/05/2003. It was alleged that she

was ill-treated by all the accused. On 14/09/2007 at about

04.00 a.m. the Appellant committed her murder by assaulting

her with a big stone on her head. The FIR was lodged by the

father of the Appellant Harishchandra Khunte, who himself

faced the trial as Accused No.2. The FIR was lodged on

14/09/2007 vide C.R.No.113/07 at Khandala Police Station,

District Satara u/s 302, 498-A, 323, 504 r/w 34 of IPC.

4. It is alleged that the motive was that the Appellant

suspected her character. The investigation was carried out. The

panchanama of the spot of incident was conducted. The big

grinding stone was recovered from the spot. The Appellant was

arrested at 07.10 p.m. on 14/09/2007. At the conclusion of the

investigation, the charge-sheet was filed before the J.M.F.C.,

Khandala, District Satara. The case was committed to the Court

of Sessions.

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5. During the trial the prosecution examined six

witnesses. As per the evidence of P.W.5 Dr.Deepak Nathuram

Mane, who had conducted the post-mortem examination, he had

observed 'Haematoma of 7 cm x 6 cm. at left temporo parital

region. The skull was fractured. There was subdural

haemorrhage on the left hemisphere of the brain and the death

was caused due to this head injury'. This witness P.W.5 Dr.

Deepak Mane also found that the deceased was pregnant with

six months old child, who had also died. Therefore at the conclusion

of the trial, the Appellant was convicted u/s 316 of IPC.

6. Besides the medical evidence, the prosecution

examined P.W.1 Shankar Kondiba Bansode who was the father

of the deceased. P.W.2 Pramod Shankar Bansode was the

brother of the deceased. P.W.3 Manisha Lala Gaikwad was the

maternal Aunt of the deceased. P.W.4 P.H.C. Dharamsingh Gunya

Pavara, had received the first information report and P.W.6 API

Avinash Shankarrao Shilimkar was the Investigating Officer.

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7. First three witnesses are the close relatives of the

deceased. They have more or less deposed on the same lines.

According to these witnesses, the deceased Priyanka got married

to the accused on 26/05/2003. The couple had two daughters.

According to them, she was ill-treated by the accused Nos.2, 3

and 4, who used to quarrel with her on flimsy grounds and also

because, according to them, she could not deliver a male child.

It is their case that, the Appellant was addicted to liquor and he

used to doubt character of the deceased. The deceased Priyanka

used to complain about these facts to her parents, who used to

reside 25 kms away from her matrimonial house. It is deposed

by P.W.1 that, on 14/09/2007, he received an anonymous call

on his phone that Priyanka was dead and he should reach there

immediately. Therefore he went to village Bhade, where he

came to know that Priyanka was removed to Government

Hospital at Khandala and she was already dead. According to

P.W.1, the father of the Appellant i.e. accused No.2 Harishchandra

told him that the Appellant had committed murder of Priyanka

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by throwing a big stone on her head. According to P.W.1 the

Appellant was having illicit relations with the Appellant's cousin

who was residing at Mumbai.

8. P.W.2 Pramod Bansode deposed before the Court that

Priyanka co-habited with the Appellant and other in-laws. The

accused before the Court were residing together. Thereafter he

narrated about the illtreatment. P.W.3 Manisha Gaikwad

deposed that Priyanka had told her that the Appellant was

doubting her character and that the Appellant had assaulted

Priyanka in the presence of this witness and at that time

Priyanka was pregnant.

9. P.W.4 P.H.C Dharamsingh Pavara has deposed that on

14/09/2008 at 07.45 a.m., the accused No.2 Harishchandra i.e.

father of the Appellant approached him and lodged his report.

He had mentioned that about 04.00 a.m. he heard shouts of his

grand children and therefore the accused No.3 went inside the

room and saw that Priyanka was lying in a pool of blood and

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that her head was smashed by a big stone. He also stated that

the Appellant was standing there and that Appellant stated that

he himself had inflicted blow on Priyanka's head with a big

stone. The FIR was registered vide C.R.No.113/07 at Khandala

Police Station.

10. P.W.6 API Avinash Shilimkar had conducted the

investigation and had arrested the Appellant at 06.40 p.m. at

14/09/2017. He had explained that he could not arrest the

Appellant earlier, because, he was busy in the investigation and

in recording statements of witnesses.

11. We have heard learned counsel Mr.Sanghraj Rupwate,

for the Appellant and Ms.R.M. Gadhvi, APP for the State. With

their assistance we have gone through the Record and we have

read the evidence.

12. The learned counsel Mr.Rupwate submitted that the

prosecution has miserably failed to prove the basic facts of this

case. He has submitted that, the FIR in this case was not

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admissible in evidence and not properly proved. He has

submitted that, the Appellant was not the lone resident of the

house. There is no record to show that the Appellant was in the

house when the incident had taken place. Therefore it was not

open for the prosecution to allege that the Appellant had

committed the said offence. He has further submitted that since

the prosecution has not discharged, the burden of proving the

basic facts, the burden of proof never shifted to the Appellant to

prove his innocence. He has further submitted that the Appellant

was not shown to be in the village and therefore there was no

proof that the Appellant had any connection with the murder.

He has further submitted that the Appellant was arrested at

06.40 p.m. on 14/09/2007 and that the Appellant in fact was

not in the village. Otherwise the police would not have failed to

arrest him immediately since his name was disclosed as per the

prosecution case at around 07.00 a.m. itself.

13. While it is true that the FIR lodged by the accused No.2

cannot be said to be proved because its contents could not be

9 / 16 APEAL-246-10.odt

proved through the accused No.2, the accused No.2 obviously

could not enter the witness box as a prosecution witness to

prove contents of FIR. Therefore, the only the fact of registration

of FIR at the instance of accused No.2, is proved by the

prosecution through the evidence of P.W.4. The averments in

the FIR in respect of confession made by the Appellant to the

accused No.2 are inadmissible on that count and therefore, we

are not taking into account the contents of FIR. However, the

fact remains that the accused No.2 approached the police station

at 07.00 a.m. in the morning and gave some complaint, which

was treated as FIR and the offence was registered vide

C.R.No.113/07 at Khandala Police Station.

14. Though all the accused were charged for the offence

punishable u/s 498-A r/w 34 of IPC, the learned trial Judge has

already acquitted all the accused including present Appellant

from these charges and in any case, we find that the evidence

led by the prosecution is lacking to prove the ingredients of

section 498-A of IPC.

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15. The crucial question remains as to whether the

Appellant can be convicted for the offence u/s 302 of IPC.

According to the learned counsel Mr.Rupwate, the prosecution

has not brought on record any evidence to show that the

Appellant was present in the house at that time. In this context,

the reference can be made to the evidence of the prosecution

witnesses and in particular the witness No.2 Pramod Bansode.

He has clearly stated that all the accused cohabited together and

the deceased was residing with them in her matrimonial house

with them. There is no cross-examination to this deposition in

respect of staying together in the house. There is no reason to

infer otherwise and therefore there is no reason to hold that the

Appellant was not at home at 04.00 a.m. on 14/09/07, when

the incident had taken place. Considering the odd hours, early in

the morning, there is no reason to presume that the Appellant

may not be at home. In such circumstances, it was the duty of

the Appellant to have proved that he was not at home, because

the burden was clearly on him u/s 106 of the Evidence Act,

which reads thus;

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"106. Burden of proving fact especially within knowledge.

--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

16. Therefore, what occurred within four walls of their

house was within the exclusive knowledge of the Appellant and

he has not discharged that burden.

17. The learned counsel Mr.Rupwate further submitted

that there were other inmates in the house including the parents

of the Appellant. Therefore it cannot be said that the burden was

only on the Appellant to explain the circumstances. In this

connection, the learned prosecutor submitted that the while the

husband and wife were residing in the house, the burden was

clearly on the Appellant himself. Even assuming the other

accused did not explain the circumstances, still the present

Appellant cannot escape from his responsibility to discharge the

burden u/s 106 of the Evidence Act and to explain the facts. In

any case, the accused No.2 i.e. father of the Appellant had

12 / 16 APEAL-246-10.odt

approached the police station in the morning. The Appellant had

not even done that. He had not even tried to provide any

medical help. Therefore we hold that the burden of providing

u/s 106 of the Evidence Act was clearly on the Appellant which

he has not discharged and therefore we are inclined to hold that

the Appellant had committed murder of his wife.

18. The learned Counsel Mr.Rupamate submitted that the

Appellant was not immediately arrested though his name was

disclosed at 07.00 a.m. in the morning. In this connection, the

Investigating Officer has explained that, he was busy in the

other investigation and therefore he did not arrest him till 06.40

p.m. Though this explanation is not entirely acceptable, that by

itself will not show that, the accused was not in the village. The

Appellant in his statement u/s 313 of Cr.P.C. has not explained

as to where he was at that time, when the incident had taken

place and he has not even taken a specific defence that he was

at a particular spot or in a different city when the incident had

taken place. Therefore, there is no force in the submissions of

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learned counsel Mr.Rupamate that the Appellant was not the

village or in the house and therefore it was not for him to explain

the circumstances in which the deceased met with her death.

19. The prosecution through the evidence of P.W.1, P.W.2

and P.W.3 has already sufficiently established the motive behind

the murder. The prosecution witnesses have stated that the

Appellant was doubting her character and that he was addicted

to liquor and that had led to commission of murder. Here again,

there is no serious challenge to such deposition and therefore we

hold that even the motive is proved by the prosecution.

20. Learned counsel Mr.Rupwate has relied on the

judgment of Joes alias Pappachan Vs. Sub-Inspector of Police,

Koyilandy & Anr., reported in AIR 2016 SCC 5481. In the said

case it was held that the alleged motive, that the accused therein

had developed extramarital relationship and wanted to kill his

wife, was not proved in that case. There was no evidence to

show that at relevant time, the accused was present in the house

and therefore burden of proving u/s 106 of the Evidence Act

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was not directed against the accused therein. In that case, the

incident had taken place between 06.30 p.m. to 08.30 p.m. This

time is not such when the accused has to be at home. But in the

present case, the incident had taken place at 04.00 a.m. in the

early morning and therefore it was for the Appellant to have

explained the circumstances, which were within his exclusive

knowledge. Mr.Rupwate thereafter relied on the judgment in the

case of Tomaso Bruno and Anr. Vs. State of UP, reported in

2015 Cri.L.J. 1690. In the said case, the piece of valuable

evidence in the form of CCTV footage was not produced and

therefore benefit was given to the Appellant. In the said case

there were more than one inmates in the hotel where the

murder was committed and the accused has taken a specific

defence that they had gone out at the time when the offence was

committed. In the said case, the best possible evidence in the

form of CCTV footage was not produced on record and therefore

the accused were given benefit of doubt. Such is not the case

before us in the present case and therefore this judgment is not

helpful to Mr.Rupwate.

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21. Mr.Rupwate thereafter relied on the judgment in the

case of Nagaraj Vs. State represented by Inspector of Police,

Salem Town, reported in (2015) 4 Supreme Court Cases 739,

wherein it was held that unsatisfactory answers in the

examination u/s 313 of Cr.P.C. cannot be the basis of

conviction. In the present case, we are not upholding conviction

on the basis of unsatisfactory answers given in the examination

u/s 313 of Cr.P.C. We have assessed the prosecution evidence to

arrive at our finding.

22. Though, the Appellant was also convicted u/s 316 of

the Indian Penal Code, there was no charge framed under such

section. In this context, we are relying on the judgment of

Hon'ble Supreme Court, in the case of Dalbir Singh Vs. State of

UP, reported in (2002) 5 Supreme Court Cases 334. In this

case, it was held that, though a particular charge was not

framed during the trial, after the evidence led during the trial if

it gives sufficient notice of the allegations against the accused,

the conviction can be recorded in respect of such charge.

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23. In the present case, there was sufficient evidence on

record to show that the deceased was pregnant and in the same

transaction even the child had died. Therefore the Appellant had

sufficient knowledge about such allegation and therefore there

was no prohibition for recording conviction u/s 316 of IPC.

24. With the result we find that there is no merit in the

Appeal. Hence order :

ORDER

The Appeal is dismissed.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)